Lundy v. Manchel

• Decision Date: 30 September 2004
• Citation: 865 A.2d 850
• Parties: Marvin LUNDY, Esquire, Appellant v. Donald F. MANCHEL, Esquire, Appellee. Marvin Lundy, Esquire, Appellee v. Donald F. Manchel, Esquire, Appellant
• Court: Pennsylvania Superior Court

865 A.2d 850

Marvin LUNDY, Esquire, Appellant v. Donald F. MANCHEL, Esquire, Appellee.

Marvin Lundy, Esquire, Appellee v. Donald F. Manchel, Esquire, Appellant

Superior Court of Pennsylvania.

Argued September 23, 2003.

Filed September 30, 2004.

Paul R. Rosen, Philadelhia, for Lundy.

Murray S. Eckell, Media, for Manchel.

Before: STEVENS, BOWES, and MONTEMURO^*, JJ.

STEVENS, J.:

¶ 1 Marvin Lundy appeals from an August 21, 2002 order of the Court of Common Pleas of Philadelphia County.¹ Donald Manchel cross appeals.

¶ 2 Lundy and Manchel were partners in Manchel, Lundy & Lessin, a personal injury law firm ("the firm"). No longer wishing to remain associated, they entered into a Dissolution Agreement in July 1997, and began binding common law arbitration which has extended to numerous hearings involving comprehensive testimony over the course of years.

¶ 3 On April 14, 2001, and September 7, 2001, the arbitrator issued orders which, in pertinent part, directed Lundy to comply with the Dissolution Agreement, and pay certain amounts to the partnership and to Manchel. Lundy petitioned the arbitrator to reconsider the September 7, 2001 order, but reconsideration was denied on November 1, 2001. Despite the denial of reconsideration, Lundy refused to comply with the arbitration awards of April 14, 2001, and September 7, 2001, causing Manchel to file a petition for confirmation. Manchel's petition was granted, and on February 4, 2002, Judge Matthew Carrafiello of the Court of Common Pleas of Philadelphia County confirmed the arbitration awards of April 14, 2001, and September 7, 2001. ¶ 4 Lundy did not petition the lower court to vacate or modify the February 4, 2002 confirmation order within thirty days, as is required by 42 Pa.C.S.A. § 7342(b), but neither did he comply with the February 4, 2002 order.² Instead, he waited until April 16, 2002, before petitioning the arbitrator for what he titled "Appropriate Adjustment Based on Inequity in Value." Lundy's petition for adjustment alleged that the Dissolution Agreement vested in the arbitrator the power to make adjustments, which were necessary because of errors in the September 7, 2001 arbitration award (which, as we mentioned above, Lundy failed to challenge before the lower court), and an arbitration award of November 5, 1999.³

¶ 5 In response to Lundy's petition for adjustment, Manchel filed preliminary objections, complaining of, among other things, that Lundy was attempting to re-litigate issues from which he had failed to appeal. On May 8, 2002 the arbitrator sustained Manchel's preliminary objections and denied Lundy's petition for adjustment. The effect of this order was to leave intact and in force the April 14, 2001, and September 7, 2001 arbitration awards.⁴

¶ 6 Still attempting to avoid the arbitrator's order to comply with the Dissolution Agreement, however, Lundy filed a petition to "Vacate or Modify Unconscionable Common Law Arbitration Award" with the lower court on June 7, 2002, requesting that the lower court vacate the arbitrator's May 8, 2002 order and assume jurisdiction for the purposes of deciding Lundy's April 16, 2002 petition for adjustment. As described by the lower court, Lundy's petition to vacate asserted that:

he was denied his right to a full and fair hearing because the Arbitrator denied his Petition for Adjustment without holding a new hearing on the arbitration awards, and before Lundy could reply to Manchel's Preliminary Objections to Lundy's Petition for Adjustment. Additionally, Lundy alleges that the May 8th Order was tainted by bias and fraud on the part of the Arbitrator, and that the May 8th Order was grossly inequitable.

Memorandum Opinion filed 8/22/02 at 2. In response to Lundy's petition to vacate, Manchel again filed preliminary objections, arguing that the petition attempted to re-litigate settled matters, and was legally insufficient, procedurally deficient, vexatious and filed in bad faith. Id. The lower court sustained Manchel's preliminary objections on several grounds, and dismissed Lundy's petition on August 22, 2002. Lundy now appeals.⁵

¶ 7 Because we find no merit to Lundy's claims, we affirm the lower court's grant of Manchel's preliminary objections. Although Lundy filed a petition to vacate the arbitrator's order of May 8, 2002, what he actually challenges are the arbitration awards of April 14, 2001, and September 7, 2001. We agree with Manchel that Lundy is improperly trying to avoid those awards.

¶ 8 Even if this were not the case, Lundy's appeal is fatally flawed. The "statement of questions involved" contained in Lundy's appellate brief raises four allegations of trial court error.⁶ The argument portion of Lundy's brief, however, contains argument under only three headings as follows: "Lundy Proved an Unjust, Inequitable and Unconscionable Award," "Lundy Proved the Denial of a Hearing" and "The Cold Record Alone Sadly Establishes Misconduct, Corruption or Other Irregularities." Id. at 22-23, 25.

¶ 9 Pursuant to Pa.R.A.P. 2116(a), no point will ordinarily be considered which is not set forth in the statement of questions involved, or suggested thereby. Additionally, pursuant to Pa.R.A.P. 2119(a), the argument portion of an appellate brief is to be divided into as many parts as there are questions to be argued. Here, the argument portion of Lundy's brief is not divided into the issues raised by his statement of questions involved. Even if we were to find that the allegations included in the argument portion of Lundy's brief were sufficiently similar to the statement of questions involved to allow review, none of Lundy's claims have merit.

¶ 10 In asserting that he "Proved the Denial of a Hearing," and that the arbitration award should have been vacated or modified because misconduct, corruption, or other irregularity caused it to be unjust, inequitable and unconscionable, Lundy makes various factual assertions, including references to the Dissolution Agreement, insisting that the assertions are established by "[t]he uncontradicted and uncontradictable facts." Id. at 22-23. In the sparse argument he provides, Lundy does not specify or offer citation to the location of these allegedly "uncontradicted and uncontradictable facts" in the record, in violation of Rule 2119(c). Additionally, a review of the certified record reveals that it does not contain the Dissolution Agreement, therefore any argument which hinges on application of that agreement has been waived.

"It is the obligation of the appellant to make sure that the record forwarded to an appellate court contains those documents necessary to allow a complete and judicious assessment of the issues raised on appeal." Hrinkevich v. Hrinkevich, 450 Pa.Super. 405, 676 A.2d 237, 240 (Pa.Super.1996) (citation omitted). "Under our Rules of Appellate Procedure, those documents which are not part of the `official record' forwarded to this Court are considered to be non-existent.... And, these deficiencies may not be remedied by inclusion in a brief in the form of a reproduced record." D'Ardenne v. Strawbridge & Clothier, Inc., 712 A.2d 318, 326 (Pa.Super.1998) (citation omitted), appeal denied, 557 Pa. 647, 734 A.2d 394 (1998). "It is well settled that an appellate court may consider only those facts which have been duly certified in the record on appeal." Albert v. Albert, 707 A.2d 234, 236 (Pa.Super.1998).

Bennyhoff v. Pappert, 790 A.2d 313, 318 (Pa.Super.2001) (citing Claudio v. Dean, 786 A.2d 224 (Pa.Super.2001) reversed on other grounds, 574 Pa. 359, 831 A.2d 140 (2003.)).

¶ 11 This arbitration has obviously been complex and protracted. Without a complete certified record, without concrete citations to the record we have before us, and without a cohesive brief, Lundy has utterly failed to show that Manchel's preliminary objections in this regard were improperly sustained.⁷Theodore C. Wills Company v. School District of Boyertown Area, 837 A.2d 1186, 1188 (Pa.Super.2003); See also Gargano v. Terminix, 784 A.2d 188, 193 (Pa.Super.2001).⁸

¶ 12 Having found meritless Lundy's continued attempts to avoid the arbitrator's awards in this case, we turn to Manchel's cross-appeal that the lower court should have awarded him counsel fees. In denying Manchel's request for fees, the lower court stated as follows:

Under 42 Pa.C.S. § 2503(9), a party in entitled to counsel fees if "the conduct of another party in commencing the matter or otherwise was arbitrary, vexatious or in bad faith." Opinion filed 8/22/02 at 9 4. Each of these terms have been narrowly defined as follows:

An opponent's conduct has been deemed to be "arbitrary" within the meaning of the statute if such conduct is based on random or convenient selection or choice rather than on reason or nature. An opponent also can be deemed to have brought suit "vexatiously" if he filed the suit without sufficient ground in either law or in fact and if the suit served the sole purpose of causing annoyance. Finally, an opponent can be charged with filing a law suit in "bad faith" if he filed the suit for the purpose of fraud, dishonesty, or corruption.

Thunberg v. Strause, 545 Pa. 607, 615-616, 682 A.2d 295, 299-300 (1996) (citations omitted).

...

Although the record clearly demonstrates that the Petitioner has employed all possible procedural strategies which, in effect, delay compliance with the Arbitration awards, that were ordered in 2001, the Court cannot conclude that the Petitioner's actions in filing the Petition to Vacate rise to the level of being vexatious. Therefore, this Court denies Respondent's request for attorney's fees and costs.

4 Section 2503(9) was drafted with the intent "to sanction those who knowingly raise, in bad faith, frivolous claims which have no reasonable possibility of success, for the purpose of harassing, obstructing or delaying the opposing party." In re Estate of Liscio, 432 Pa.Super. 440, 446, 638 A.2d 1019, 1022 (1994), citing Dooley v. Rubin, 422 Pa.Super.

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